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Repugnant Verdicts: Facts Don’t Count

In a 4-3 decision covering a pair of cases, People v. Muhammad, the New York Court of Appeals has done the seemingly impossible, upheld a conviction for First Degree Assault by means of a weapon in the face of the jury’s acquittal of possession of a weapon. Magic.

Federal courts stay out of the jury room and even make the effort at rationalizing repugnant verdicts, even though it would seem to undermine confidence that the legal system is anything more than a shell game.

The U.S. Supreme Court settled this question for federal courts when it unanimously held that the Federal Constitution does not prohibit a jury from rendering a verdict that is inherently inconsistent (see e.g. United States v Powell, 469 US 57, 63 [1984], citing Harris v Rivera, 454 US 339, 346 [1981] [a jury has the “unreviewable power . . . to return a verdict of not guilty for impermissible reasons”]). The Supreme Court has further declined to address repugnancy under its supervisory powers over the federal criminal process because, among other reasons, “[s]uch an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake” (Powell, 469 US at 66, quoted in People v Rayam, 94 NY2d 557, 563 [2000]). Hence, federal courts do not review verdicts under the theory of repugnancy.

New York, however, remains in the repugnancy business. At least in theory. In the two cases before it, one defendant was convicted of assault using a gun, the other with a hammer. Fair enough, except the juries acquitted of possession of a weapon as well. So then, you have assaults with a weapon, but no weapon. What to do?

Judge Victoria Graffeo, writing for the majority, shows that she can still work the floor mats.

Our standard for judging whether a verdict is legally repugnant was articulated in 1981 in People v Tucker (55 NY2d 1). We held that “a verdict as to a particular count shall be set aside” as repugnant “only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury” (id. at 4) without regard to the accuracy of those instructions (see id. at 7; see also People v Green, 71 NY2d 1006, 1008 [1988]; People v Hampton, 61 NY2d 963, 964 [1984]). The underlying purpose of this rule is to ensure that an individual is not convicted of “a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all” (Tucker, 55 NY2d at 6). A person cannot be convicted of a crime if a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt.

So far, so good, provided that the little wrinkle of incorrect jury instructions doesn’t cause a hiccup. So where’s the rub?

Based on the instructions that were given to the juries and viewed from a theoretical perspective without regard to the evidence presented at these trials, it was possible for these juries to acquit defendants of weapon possession but convict them of assault because the former crime contains an essential element that the latter does not: possession. The weapon counts required that defendants physically possess their respective weapons or exercise dominion or control over them (see Penal Law § 10.00 [8]; § 265.02 [1]; § 265.03 [1] [b]). The assault counts, however, required that defendants injure the victims “by means of” the weapons (Penal Law §§ 120.05 [2], 120.10 [1]) and that result could have been accomplished without possessing those instruments.

Theoretical perspective? Uh oh. Judge Graffeo goes on to explain that an assault with a weapon could, theoretically, be committed by throwing a person in front of a subway train, the train becoming the weapon even though it’s not possessed by the defendant. Great example of her point, right? But these guys had a gun and hammer. Neither one used a subway train.

What’s fascinating about this “theoretical” rationale is its thinly veiled reliance on the notion of jury nullification.

We recognized in Tucker that a jury “may freely reject evidence and exercise its mercy function” by rendering a verdict that appears to be factually illogical. A jury is therefore free to extend leniency and may decide not to convict a defendant of one or more charges notwithstanding the court’s legal instructions.

That’s right, all you Android Anarchists, your beloved jury nullification has come back to bite you in the butt. Maybe there’s nothing in fact repugnant about the verdict at all, and it’s just a jury being kind to the defendants, showing a bit of illogical mercy and leniency. Juries are allowed to do that, you know. Isn’t that what you’ve wanted all along?

The problem with this backhand swipe is that neither the court, any more than the nullification advocates, can have it both ways. If lawyers can’t argue for, and judges can’t instruct, the jury to make the active decision to acquit despite proof of guilt, then courts can’t rationally bootstrap this possibility into a justification for a repugnant verdict. Either we can do it or we can’t, and if we can’t, they can’t either.

As long as trial courts play the game of believing that jury verdicts are based on evidence presented at trial, and that the jurors actually pay attention to the charge given by the court as applied to the evidence, it seems that resort to theoretical flights of fantasy to uphold a conviction in the face of a repugnant acquittal makes the criminal justice system appear absurd. Every case has its facts, and either they mean something or they don’t. Pick a side.

In dissent, Judge Carmen Ciparick lays out what would seem obvious to all:

After all, as the trial court explained in its charge, Muhammad was indicted under a theory that he shot the victim. Thus, it should go without saying that Muhammad could not have shot the victim with a firearm if he did not possess one. The jury, in rendering its guilty verdict on the assault count, also had to find that Muhammad intended to cause serious physical injury to the victim by means of such firearm.

But the obvious is only obvious if one is constrained to decide appeals based upon the facts. Is that a subway in your pocket or are you glad to see me?

I would argue that this case, together with Tucker, provide a basis for a request to charge on the jury’s discretion to nullify (followed by the appellate argument that there is an insufficient legal basis for the refusal to so charge – if it’s one of the jury’s powers, what legitimate basis could there be not to advise the jury of it upon request – or even absent a request?)

Scott H. Greenfield

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SHG